Usrey v. State, 7 Div. 160

• Decision Date: 05 February 1952
• Docket Number: 7 Div. 160
• Citation: 56 So.2d 790,36 Ala.App. 394
• Parties: USREY v. STATE.
• Court: Alabama Court of Appeals

Page 790

56 So.2d 790

36 Ala.App. 394

USREY v. STATE.

7 Div. 160.

Court of Appeals of Alabama.

Feb. 5, 1952.

Ellis & Fowler, Columbiana, for appellant.

Si Garrett, Atty. Gen., M. Roland Nachman, Jr., Asst. Atty. Gen., and Wm. H. Sanders, Montgomery, of counsel, for the State.

CARR, Presiding Judge.

This is the second appeal of this cause. See 35 Ala.App. 434, 48 So.2d 443.

After remandment the accused was convicted on the second count of the indictment.

The salient and pertinent facts are fairly and accurately set out in brief of the assistant attorney general:

'The evidence presented by the State tended to show the following facts: The still in question was located in a wooded area near Fayetteville, in Talladega County, Alabama. On the day when the site was raided by a party of law enforcement officers there were found there a complete apparatus for distilling whiskey, a quantity of liquor, barrels of mash, some empty sugar sacks, etc. There were five men present at the still at the time of the raid; defendant was not one of them. However, four of these men testified that they had been employed by defendant and that they operated the still and manufactured whiskey under the direction and supervision of defendant. Two of them testified that defendant had driven them to a point on the highway near the still early that morning. Three of the men testified that a truck loaded with sugar came to the site of the still later that morning. Two of these witnesses testified that the truck was driven by the defendant and that they unloaded the sugar and disposed of it at his direction.

'To corroborate the testimony of these accomplices, there was testimony to the effect that tire tracks to the still site were of a peculiar and distinguishable nature. These tracks had been made by a truck with dual rear wheels; three of the individual tracks made by these wheels were smooth, but the fourth bore the peculiar and distinguishing mark of a mud grip tire. These four tracks corresponded with the tires found on appellant's truck when it was examined by the officers later; that is to say, three of the tires on this truck had the treads worn smooth but the fourth tire had the mud grip tread plainly visible.

'Defendant denied any connection with or participation in the illicit liquor-making. With respect to the accusation that he delivered a truckload of sugar at the still site in the morning, he offered an alibi. His story was that he and his brother-in-law had gone to Sylacauga that morning where he visited a dentist and had a tooth pulled. Upon his return home he went to bed and remained there until late in the afternoon. During all this time, he claimed, his truck (the one allegedly used to deliver the sugar) had a dead battery and was parked in a garage in Fayetteville.'

One question of critical concern is whether or not the testimony of the accomplices was sufficiently corroborated.

It is apparent that this review must be related to that aspect of the evidence which tended to show that appellant drove his truck, loaded with sugar, to the still place the morning prior to the raid that afternoon.

According to the testimony of one of the accomplices the appellant brought between fifteen and eighteen hundred pounds of sugar on the truck.

Sec. 307, Title 15, Code 1940 provides: 'A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.'

In the case of Smith v. State, 230 Ala. 413, 161 So. 538, 542, Justice Brown, writing for the Supreme Court, declared the general, applicable rule: 'It is not necessary that the corroborating evidence refer to any particular statement or fact testified to by the accomplice. If it strenghens the probative criminating force of his testimony and tends to connect the defendant with the commission of the offense, it is sufficient to warrant the submission of the issue of guilt or innocence to the jury.'

The construction which our decisions place upon Title 15, Sec. 307, supra, is that corroboration means to strengthen, not necessarily the proof of any specific fact about which the accomplice has testified. Bradley v. State, 19 Ala.App. 578, 99 So. 321.

In the case of De Graaf v. State, 34 Ala.App. 137, 37 So.2d 130, we held that the evidence tending to show appellant's proximity to the alleged offense was sufficient corroboration of the accomplice's testimony to meet the requirements of the statute.

We are clear to the conclusion that the corroborating evidence in the instant case is also...